Practice point: The doctrine is appropriate in a medical malpractice case when the injury is unexplained, the injury site is remote from the treatment site and plaintiff was anaesthetized.
Practitioners should note that a plaintiff must show only enough evidence supporting these three conditions to afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence.
Case: Antoniato v. Long Is. Jewish Med. Ctr., NY Slip Op 00319 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Evidence.
February 4, 2009
February 3, 2009
Employment Law.
Practice point: If a collective bargaining agreement specifies a grievance procedure, a covered employee may not sue the employer directly for breach of the agreement but must proceed, through the union, according to the agreement’s terms.
Practitioners should note that this rule equally applies to employees who challenge their termination based on the employer's alleged breach of the collective bargaining agreement.
Case: Ambrosino v. Village of Bronxville, NY Slip Op 00318 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Res ipsa loquitur.
Practitioners should note that this rule equally applies to employees who challenge their termination based on the employer's alleged breach of the collective bargaining agreement.
Case: Ambrosino v. Village of Bronxville, NY Slip Op 00318 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Res ipsa loquitur.
February 2, 2009
Service of process.
Practice point: If served by means other than personal delivery, a person may defend the action within one year after learning of entry of the judgment on a showing that notice of the summons was not personally received in time to defend and that there is a meritorious defense, pursuant to CPLR 317.
Practitioners should note that, absent such a showing, vacating the judgment requires a reasonable excuse for the default and a potentially meritorious defense, pursuant to CPLR 5015(a)(1).
Case: M. R. v. 2526 Valentine LLC, NY Slip Op 00300 (1st Dept. 2009)
The opinion is here.
Tomorrow's issue: Employment Law.
Practitioners should note that, absent such a showing, vacating the judgment requires a reasonable excuse for the default and a potentially meritorious defense, pursuant to CPLR 5015(a)(1).
Case: M. R. v. 2526 Valentine LLC, NY Slip Op 00300 (1st Dept. 2009)
The opinion is here.
Tomorrow's issue: Employment Law.
January 30, 2009
Attorneys' fees.
Practice point: Evidence in the form of detailed monthly invoices, together with affidavits indicating that the invoices were regularly and timely forwarded to and received by defendant, will establish plaintiff's compliance with the retainer agreement's requirement of regular billing.
Practitioners should note that plaintiff's procedural error in submitting an attorney's affirmation in support of its motion, as opposed to the affidavit as required by CPLR 2106, will be cured when the same affirmation is submitted in affidavit form in reply papers.
Case: Berkman Bottger & Rodd, LLP v. Moriarty, NY Slip Op 00311 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Service of process.
Practitioners should note that plaintiff's procedural error in submitting an attorney's affirmation in support of its motion, as opposed to the affidavit as required by CPLR 2106, will be cured when the same affirmation is submitted in affidavit form in reply papers.
Case: Berkman Bottger & Rodd, LLP v. Moriarty, NY Slip Op 00311 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Service of process.
January 29, 2009
Contracts.
Practice point: If there is an enforceable contract, plaintiff has no claim sounding in quantum meruit.
Practitioners should note that the receipt of a benefit, standing alone, is insufficient to show unjust enrichment.
Case: Empire State Fuel Corp. v. Warbasse-Cogeneration Tech. Partnership, L.P., NY Slip 00303 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Attorneys’ fees.
Practitioners should note that the receipt of a benefit, standing alone, is insufficient to show unjust enrichment.
Case: Empire State Fuel Corp. v. Warbasse-Cogeneration Tech. Partnership, L.P., NY Slip 00303 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Attorneys’ fees.
January 28, 2009
Tortious interference.
Practice point: Plaintiff's claim of tortious interference with prospective economic advantage is insufficient as a matter of law when the complaint fails to establish that defendant acted solely to harm plaintiff by unlawful means beyond mere self-interest or other economic considerations.
Practitioners should note that there is no tortious interference when plaintiff had a fee dispute with defendant, and defendant told a third party not to conduct business with plaintiff until the fee dispute was resolved.
Case: Phillips v. Carter, NY Slip Op 00261 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Contracts.
Practitioners should note that there is no tortious interference when plaintiff had a fee dispute with defendant, and defendant told a third party not to conduct business with plaintiff until the fee dispute was resolved.
Case: Phillips v. Carter, NY Slip Op 00261 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Contracts.
January 27, 2009
Res judicata.
Practice point: A valid final judgment bars future actions between the same parties on the same cause of action.
Practitioners should note that once a claim is brought to a conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based on different theories or if seeking a different remedy.
Case: Lazides v. P & G Enters., NY Slip Op 00194 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Tortious interference.
Practitioners should note that once a claim is brought to a conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based on different theories or if seeking a different remedy.
Case: Lazides v. P & G Enters., NY Slip Op 00194 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Tortious interference.
January 26, 2009
Foreclosures.
Practice point: In the exercise of its equitable powers, a court has the discretion to set aside a foreclosure sale where there is evidence of fraud, collusion, mistake or misconduct.
Practitioners should note that, absent such conduct, the inadequacy of a price is an insufficient reason to set aside the sale unless the price is unconscionably low.
Case: Astoria Fed. Sav. & Loan Assoc. v. Hartridge, NY Slip Op 00181 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Res judicata.
Practitioners should note that, absent such conduct, the inadequacy of a price is an insufficient reason to set aside the sale unless the price is unconscionably low.
Case: Astoria Fed. Sav. & Loan Assoc. v. Hartridge, NY Slip Op 00181 (2d Dept. 2009)
The opinion is here.
Tomorrow’s issue: Res judicata.
January 23, 2009
Corporations.
Practice point: An action seeking an accounting of a partnership on the basis that a former partner withdrew excess profits will be dismissed if the partnership’s tax returns indicate that the former partner had a positive capital account balance.
Practitioners should note that representations made in the partnership’s tax returns are binding.
Case: Peterson v. Neville, NY Slip Op 00124 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Foreclosures.
Practitioners should note that representations made in the partnership’s tax returns are binding.
Case: Peterson v. Neville, NY Slip Op 00124 (1st Dept. 2009)
The opinion is here.
Monday’s issue: Foreclosures.
January 22, 2009
Disbarment.
Practice point: A federal felony conviction triggers automatic disbarment if the offense is essentially similar to a felony under New York law, pursuant to Judiciary Law § 90[4][e].
Practitioners should note that a conviction for bankruptcy fraud under 18 USC § 157, for knowingly and intentionally filing bankruptcy petitions in which an attorney fraudulently misrepresented and omitted material and substantial assets, is essentially similar to the New York felonies of offering a false instrument for filing in the first degree and perjury in the first degree, and, therefore, results in automatic disbarment.
Case: Matter of Yagman, NY Slip Op 00138 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Corporations.
Practitioners should note that a conviction for bankruptcy fraud under 18 USC § 157, for knowingly and intentionally filing bankruptcy petitions in which an attorney fraudulently misrepresented and omitted material and substantial assets, is essentially similar to the New York felonies of offering a false instrument for filing in the first degree and perjury in the first degree, and, therefore, results in automatic disbarment.
Case: Matter of Yagman, NY Slip Op 00138 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Corporations.
January 21, 2009
Civil contempt.
Practice point: There is a civil contempt when an individual's rights have been harmed by a party's failure to obey a court order.
Practitioners should note that it must be established that a lawful court order was in effect, clearly expressing an unequivocal mandate. It must also appear with reasonable certainty that the alleged contemnor knew of the court’s mandate and, in fact, disobeyed it.
Case: Gryphon Dom. VI, LLC v. APP Intl. Fin. Co., NY Slip Op 00135 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Disbarment.
Practitioners should note that it must be established that a lawful court order was in effect, clearly expressing an unequivocal mandate. It must also appear with reasonable certainty that the alleged contemnor knew of the court’s mandate and, in fact, disobeyed it.
Case: Gryphon Dom. VI, LLC v. APP Intl. Fin. Co., NY Slip Op 00135 (1st Dept. 2009)
The opinion is here.
Tomorrow’s issue: Disbarment.
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